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Case 2:07-cv-00113-MHT-TFM Document 4 Filed 02/07/2007 Page 1 of 4
ORDER
On January 30, 2007, the petitioner, Di’Mitri Ray Henderson (“Henderson”) filed a
motion, Henderson asks this court to reduce his sentence of imprisonment based on the
Henderson’s asserted claim attacks the legality of his sentence. The law is settled that
28 U.S.C. § 2255 is the exclusive remedy for challenging the validity of a conviction and
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Although Henderson’s motion was date-stamped “received” on February 6, 2007, this court,
under the “mailbox rule,” deems his motion filed on the date he delivered it to prison authorities for
mailing, presumptively, January 30, 2007, the day that he signed it. See Houston v. Lack, 487 U.S.
266, 271-72 (1988); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
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On February 6, 2006, Henderson pled guilty to transportation of counterfeited securities.
On June 8, 2006, he was sentenced to twelve months and one day in prison.
Dockets.Justia.com
Case 2:07-cv-00113-MHT-TFM Document 4 Filed 02/07/2007 Page 2 of 4
sentence, unless the remedy is inadequate or ineffective. See Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. 1981); Lane
v. Hanberry, 601 F.2d 805 (5th Cir. 1979). The remedy afforded by § 2255 is not deemed
inadequate or ineffective merely because an inmate’s motion is barred by the applicable one-
in 28 U.S.C. §§ 2255 and 2244(b)(3)(A). See Wofford v. Scott, 177 F.3d 1236, 1244 (11th
Cir. 1999); In re Davenport, 147 F.3d 605, 608 (7th Cir. 1998). Moreover, “[t]he remedy
has been unable to obtain relief under that provision....” In re Vial, 115 F.3d 1192, 1194 n.5
Consequently, the claim Henderson now seeks to advance may be presented properly
only in a 28 U.S.C. § 2255 motion. “Federal courts have long recognized that they have an
obligation to look behind the label of a motion filed by a pro se inmate and determine
whether the motion is, in effect, cognizable under a different remedial statutory framework.”
United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Accordingly, the court
In light of the foregoing, and in accordance with Castro v. United States, 540 U.S.
375 (2003), the court hereby advises Henderson of its intention to re-characterize his
pleading as a § 2255 motion. The court cautions Henderson that such re-characterization
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will render this motion and any subsequent § 2255 motion filed with this court susceptible
to each of the procedural limitations imposed upon § 2255 motions. Specifically, Henderson
is cautioned that the instant motion and any subsequent § 2255 motion shall be subject to
the one-year period of limitation and the successive petition bar applicable to post-conviction
motions.3
It is further
ORDERED that on or before February 28, 2007, Henderson shall advise this court
1. Proceed before this court on the claims presented in his January 30, 2007, motion
2. Amend this motion to assert any additional claims on which he wishes to challenge
Henderson is advised that if he fails to file a response in compliance with this order,
this cause will proceed as an action under 28 U.S.C. § 2255, and the court will consider only
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“A 1-year period of limitation shall apply to a motion under this section.” 28 U.S.C. § 2255
¶6. Further, Title 28 U.S.C. § 2244(b)(3)(A) requires that “[b]efore a second or successive [28
U.S.C. § 2255 motion] ... is filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §
2244(b)(3)(A).
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/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE